Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Germany (Ratification: 1957)

Individual Case (CAS) - Discussion: 1994, Publication: 81st ILC session (1994)

A Government representative explained (in relation to paragraph 3 of the observation of the Committee of Experts) that in the German public service there were three categories of employees: manual workers, state employees and public servants. Manual workers and state employees, just like their colleagues in the private sector were employed on the basis of a contract which could be modified during its duration. Their terms of employment were laid down in collective bargaining agreements, they paid contributions to social security and they had the right to strike. The contractual status of public servants on the other hand was established on their appointment. Instead of signing a contract, they swore an oath of loyalty to their employer. Public servants could be dismissed only if they had been responsible for very serious cases of misconduct. It was the legislator who laid down their terms of employment including their salaries. They did not pay social security contributions. They were not allowed to exercise the right to strike. The reasons were many. First, the Constitution prohibited the situation whereby a public servant could refuse to perform his duties for his employer, which had been confirmed by the Federal Constitutional Court. Another reason was that, according to jurisprudence of the Federal Labour Court which had been confirmed by the Federal Constitutional Court, labour conflicts in Germany could only be conducted in connection with subjects which were covered by collective bargaining agreements. However, as already mentioned, the terms of employment of public servants were fixed by the legislator. Therefore, a strike by public servants would not be directed against the employer but against Parliament. Finally, the prohibition of strikes by public servants was consistent with the objective of continuing to provide some services for citizens even if there were labour conflicts. The speaker wondered whether if, at the time when Germany had envisaged the ratification of Convention No. 87, there had been sufficient elements to indicate that a right to strike would be extended to public servants at a later stage. He recalled that under the Covenant on Economic, Social and Cultural Rights (article 8, paragraph 2), legal restrictions on the right to strike for civil servants had been admitted. At the time of ratifying the European Social Charter, the Government had entered a reservation indicating that civil servants (Beamte) were excluded from the application of point 4 of Article 6 (Part II), a procedure that was not permitted for ILO Conventions. The absence of any mention of the right to strike in the text of Convention No. 87 could either be explained by the fact that the authors of the Convention felt that it was not a component of freedom of association or that it was so evidently a part of freedom of association that it was not even worth expressing explicitly. However, if the latter case were true, then what had been said in the 1994 General Survey on Freedom of Association and Collective Bargaining (paragraph 48, footnote 4) was equally true. This paragraph quoted Report VII of the 30th (1947) Session of the International Labour Conference which contained amongst other things the following statement: "However, the recognition of the right of association of public servants in no way prejudges the question of the right of such officials to strike ...". Hence, this paragraph had to be interpreted in such a way that the recognition of the right to strike for public servants had to be left to the discretion of the States that had ratified the Convention. However, the Committee of Experts had adopted a different approach. They did not just say that the right to strike was a component of freedom of association. They affirmed this right in a very specific and detailed way with which he could not agree. The Committee of Experts had allowed for restrictions on the right to strike in the public service to be subject to one particular criterion based on the function of the public servant concerned. However, in Germany, what was decisive was not the function of the public servant but the status of the employee. If one had the status of a career public servant, the right to strike could not be exercised. All other employees, that was to say, state employees and manual workers could strike, regardless of whether they were carrying out essential services or not. In practical terms, the speaker indicated that 21 per cent of those who were employed on a full-time basis in the public service were public servants (Beamte) not including the armed forces and the police. However, there were frequent strikes in the public service in Germany; also in the railways and in the postal services, where 30 per cent and 56 per cent of employees respectively were public servants. This percentage was also very high in the educational sector; by contrast, it was very low (10 per cent) in the local authorities. In fact, the German postal service was a very clear example of how strikes could be carried out quite successfully, even if only a low proportion of the people concerned were entitled to strike. In recent years, there were strikes on two occasions in the postal services, where public servants who were not entitled to strike were employed in place of striking manual workers and state employees in order to mitigate the consequences of the strikes. Moreover, in the railways and the postal services, the problem of those public servants who did not have the right to strike would disappear in the future, since privatization measures were being introduced which would lead to a situation whereby no public servants would be employed in the future in those services. The speaker agreed with the Committee of Experts that restrictions on the right to strike should never be extrapolated to such an extent that strikes became a blunt or useless weapon. However, this was certainly not the case in Germany where another criterion was applied for the limitation of the right to strike in the public service. This criterion was different from the one adopted by the Committee of Experts, which should not, in the view of the speaker, be considered as the only generally admissible criterion. Finally, the speaker stressed that no employee of the State in Germany was obliged to become a public servant but the vast majority of those who had fulfilled the prerequisites asked to become career public servants, knowing that this implied the loss of their right to strike.

The Workers' members stated that this was a case of principle which had been the subject of comments by the Committee of Experts for several years. However, neither the situation nor the Government's attitude in this regard had changed. Of course the problem was complex and could not be resolved immediately. It concerned the prohibition of the right to strike for all public servants whatever their functions and the sectors to which they belonged. Without entering into the debate concerning the definition and the status of public servants, it was appropriate to recall, like the Committee of Experts, that it was necessary to limit the number of persons affected by restrictions on the right to strike in order to avoid excluding a large number of workers from this right, and notably workers employed in industrial or commercial state enterprises. In this respect, it was appropriate to draw the attention of the Employers' members to the fact that in Germany, public sector employers had prerogatives that private sector employers did not have. If the position of the German Government was to be applied generally, this could lead to discrimination especially in countries having a very large public sector. Finally, it was to be recalled that Convention No. 87 was a fundamental instrument and, consequently, concrete measures should be taken to bring legislation and practice into conformity with the obligations set out in Articles 3 and 10.

The Employers' members would have also liked to discuss the first two points in this case on access to the workplace for union representatives who were not employees of the enterprise and the issue of replacing strikers. With respect to the workplace access issue, they were concerned that the Committee of Experts had not given enough consideration to the rights of private property. On the striker replacement issue, the experts had established an absolute rule that was even stricter than that taken by the Committee on Freedom of Association and which did not take into account the characteristics of a complex system of labour relations. The Employer's members emphasized that this was the first time that the issue of the prohibition of strikes in the public sector had been considered in this Committee. They pointed out that Germany had ratified Convention No. 87 in 1957, two years before the Committee of Experts had observed that there was in fact a right to strike in the public sector under Convention No. 87. So when Germany ratified this Convention, it had no notice that the right to strike applied in its circumstances. They further noted that the experts' first observation on this matter had occurred 30 years after the Government of Germany had ratified Convention No. 87. This case, from the employers' perspective, illustrated the problem with the one-size-fits-all approach that the experts took for many issues. In the case of strikes by public employees, the Committee of Experts would have this Committee apply two unqualified rules: that the prohibition of strikes should be limited to public servants exercising authority in the name of the State and to services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population. On the issue of strikes in essential services, the Employers' members considered that the experts' observation in this case was not consistent with what they had said in this year's General Survey, especially when considering their previously heretofore absolute rule. In this respect, the Employers' members referred to the sentence in paragraph 160 of the Survey, namely that "Account must be taken of the special circumstances existing in the various member States." The Employers' members thought that a more pragmatic, less detailed approach was called for when such a right to strike was implied through interpretation, rather than by express reference to the Convention. Germany had a special category of public employees (Beamte) that was unique in the world. While the Employers' members acknowledged that not all Beamte exercised authority in the name of the State, they swore an oath to represent the State by virtue of their special status under public law. Beamte were effectively given employment for life and an enriched pension benefit, among other considerations. These were highly sought-after jobs. In exchange for those benefits and responsibilities, that were not typical of other public employees around the world, they swore an oath of loyalty and could not strike. They had a special relationship of confidentiality and loyalty governed by public law. The Employers' members considered that, given the history of Germany and the reasons for creating the public service category of Beamte, the experts should, as they appeared to have done now in the case of strikes in essential services, reconsider their view relating to the prohibition of strikes by the Beamte and take account of the special circumstances existing with respect to the Beamte. The Employers' members concluded that the Government should be asked to consider and do what it realistically could do to comply with Convention No. 87 and that the Committee of Experts should be asked, as its Chairman stated in his summation, "to change what it can change".

The Workers' member of Japan stated that this was a very important case of principle, the implications of which could go far beyond Germany to many other countries, including his own. The observation made by the Committee of Experts in this case on the right to strike in public services was nothing new but exactly in line with the position it took in its 1983 and 1994 General Surveys. However, it was the very first time that it had been applied to an individual case in this Committee and therefore was very significant. He particularly welcomed the observation made by the experts asking the German Government to take the necessary steps to guarantee to public servants other than those exercising authority in the name of the State and to their organizations, the right to organize their activities and formulate their programmes of action to defend their economic, social and occupational interests, including by resorting to strike action, without any interference on the part of the public authorities.

The Workers' member of Germany indicated that more than 1.6 million public servants were, in addition to manual workers and state employees, mostly in ministries and administrations at the federal level. For example, in the railways and the postal services, there were more than 400,000 public servants employed. In the federal system, there were more than 900,000 public servants in the field of education and in other fields of employment in the states. He indicated that not all of these people would be entitled to exercise the right to strike. Although the working conditions for public servants were laid down in legislation and statutory regulations, in so far as their income was concerned, the results of wage agreements for those working in the public service were also applicable to public servants. In recent years, however, this was no longer the case. There had been actual interventions or attempts at intervention through the legislative process regarding working conditions. For example, the number of working hours would be increased without any corresponding increase in wages. For reasons of this kind, and not withstanding the ban on the right to strike, the indignation of the public servants had escalated into brief periods of strike action. Disciplinary measures had been taken against the strikers concerning financial claims, wage claims and claims concerning promotion. In recent years, both the Committee of Experts and the Committee on Freedom of Association had repeatedly called upon his Government to guarantee the right to strike to public servants, to the extent that they were not exercising sovereign functions. Despite these clear pronouncements by the ILO supervisory bodies, the Government had thus far taken no measures to carry out these prescriptions. Even in the case of the privatization of the railway and postal sectors, the federal Government had emphatically opposed any demands for a right to strike for persons employed in these sectors. This meant that public servants who were working for a private joint stock company and who were no longer supposed to be fulfilling any public duties were still denied the right to strike. There was no justification for withholding the right to strike in this case. Referring to the case law of the Federal Constitutional Court, the speaker indicated that neither the Constitution nor any other law contained any express provisions which prohibited strikes by public servants. He concluded by asserting that his Government should make it clear that it was prepared to undertake specific action in accordance with the prescriptions of the ILO supervisory bodies, particularly having regard to the human rights nature of Convention No. 87.

The Workers' member of Greece stated that this issue was of particular interest for European workers. The argument according to which it was necessary to privatize public services so that workers could have the right to strike was unacceptable. If a country, such as Germany, did not grant the right to strike to workers and did not strictly apply the provisions of Convention No. 87 - one of the fundamental Conventions, if not the most fundamental - what was going to happen? It would be impossible to ask other countries, whichever they may be, to respect the provisions of this Convention.

The Government representative of Germany, referring to the situation in the railway and postal sectors, acknowledged that, as long as public employees had the status of public servants, then no exception could be made for them, even in privatized enterprises. He posed a hypothetical question as to how his Government could try to change the situation. First, it was necessary to take into account that the Federal Constitutional Court had held that the ban on the right to strike of public servants was part of certain traditional principles outlined in the Constitution which could not be changed, because the Government could not influence case law. Consequently, the Constitution would have to be modified to grant the right to strike - but that would require a two-thirds majority in both Chambers. Moreover, there was a principle that strikes could only take place in Germany for a claim made in the framework of collective bargaining. Since this was again a question of case law, it could not be changed forcibly. As a result, a law concerning labour disputes would have to be adopted. Both social partners wanted the rules by which labour disputes were governed to be developed by case law, as was the case now, and not to be governed by the legislator. This would mean that the Government would have to work towards the adoption of a law governing labour disputes, contrary to the wishes of the social partners. This left his Government with the option of doing nothing, neither adopting legislation governing strike action, nor amending the Constitution. A solution would be that, whenever public servants did go on strike, the State as employer would not proceed against the strikers. However, the speaker was not sure that the Committee of Experts would agree with this solution. They would ask for an explicit change. The only alternative would be to do away with the officials of the public service altogether or to reduce the body of public servants to those with really important functions. It was impossible to predict at the moment if or when a consensus on such a solution would be reached.

The Workers' member of Germany stated that, even if the question could not be resolved in a short period of time, measures could nevertheless be taken, not necessarily through the adoption of a law on the right to strike at national level. In addition, he expressed his reservation as to the adoption of a transitory regulation when it related to the privatization of state enterprises, because it could take 30 or 40 years. Besides, he pointed out that the Federal Government could have done more to influence the process of amending the Federal Constitution towards the direction of a better clarification of the question. He further referred to the role of the Supreme Court, whose interpretation was based on the international law, and therefore also on the interpretation of the supervisory bodies of the ILO. Furthermore, the right to strike was interpreted in a divergent manner by the Federal Government and by German employers.

The Employers' members were also of the opinion that the situation could only be changed by time. Nevertheless, they observed that, when an official chose to enter the public service, it was because the jobs were attractive and the status gave him several advantages, in spite of the prohibition of the right to strike. He considered this was a trade-off. They drew attention to paragraph 160 of the General Survey.

The Workers' members expressed their hope that the Committee should adopt clear conclusions, on the one hand to avoid entering into the details of the modalities of strikes, and on the other hand, not to hesitate to request the Government to change what could be changed. The Government should be requested to put the national legislation and practice into conformity with the Convention. In addition, they pointed out that the number of public servants was quite big in Germany and that if the Employers' members' reasoning was followed in this regard, the notion of public servant (Beamte) should be limited. They concluded by insisting that the existence of a more favourable statute for the public servants should not constitute a reason for depriving them of the right to strike.

The Committee took note of the detailed information furnished by the Government representative. It noted that the Committee of Experts had formulated comments for several years regarding the application of Articles 3 and 10 of the Convention, which the Committee recalled were of fundamental character. The Committee expressed the hope that the next report of the Government would show evolutions that had taken place or were envisaged in order to ensure the full implementation of the rights recognized by the Convention to organizations of workers for the defence of economic, social and occupational interests of their members without interference on the part of the public authorities.

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Confederation of German Employers’ Associations (BDA) and the German Confederation of Trade Unions (DGB), received on 31 August 2021 and referring to the matters addressed below.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State to have recourse to strike action. The Committee had previously noted with interest a 2014 ruling handed down by the Federal Administrative Court holding that, given that the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights (ECHR) in the case of civil servants (Beamte) who are not active in genuinely sovereign domains (hoheitliche Befugnisse), for instance teachers in public schools, and this collision should be solved by the federal legislator; and that, in the case of civil servants (Beamte) who exercise sovereign authority, there is no collision with the ECHR and thus no need for action. The Committee also noted that in its 2015 ruling, the Federal Administrative Court confirmed that it is the task of the federal legislator to establish a balance between the incompatible requirements of Article 33(5) of the Basic Law and Article 11 of the ECHR and that, as long as this has not been done, the public-law strike prohibition continues to apply and is a disciplinary rule.

In its previous comment, having noted that a complaint had been raised before the Federal Constitutional Court in relation to the 2014 Federal Administrative Court judgment, the Committee requested the Government to provide a copy of the decision of the Federal Constitutional Court, as well as any other pending decision issued by it on the subject. In view of the collision ascertained by the Federal Administrative Court between Article 33(5) of the Basic Law and Article 11 of the ECHR and in light of the persisting need highlighted by the Committee for many years to bring the legislation into full conformity with the Convention with regard to the same aspect, the Committee once again requested the Government to: (i) refrain, pending the relevant decision of the Federal Constitutional Court, from imposing disciplinary sanctions against civil servants not exercising authority in the name of the State (such as teachers, postal workers and railway employees) who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation with the Convention.

The Committee notes the Government’s indication that in its decision of 12 June 2018 (Case No. 2 BvR 1738/12), the Federal Constitutional Court held, contrary to the 2014 judgment of the Federal Administrative Court, that: (i) for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system (Berufsbeamtentum) within the meaning of Article 33(5) of the Basic Law, which justifies an overriding of freedom of association; (ii) this is closely linked to the civil service principle of alimentation (Alimentationsprinzip), according to which civil servants are paid salary commensurate with the civil service position, and also to the duty of loyalty, the principle of lifetime employment and the principle that the legal relationship under civil service law (including remuneration) must be regulated by the legislature; (iii) there is no need for an express legal provision concerning a strike ban for civil servants; (iv) the strike ban for civil servants in Germany is consistent with the principle of interpreting the Basic Law in a manner compatible with international law, as well as with guarantees of the ECHR, as there is no identifiable conflict between German law and Article 11 of the ECHR; and (v) regardless of the question of whether the strike ban for civil servants actually represents an encroachment on Article 11(1) of the ECHR, it would in any case be justified either under the first or the second sentence of Article 11(2) based on the particularities of the German system of the career civil service. The Committee further observes from the text of the ruling that the Federal Constitutional Court opined that: (i) granting the right to strike, even for certain groups of civil servants only, would trigger a chain reaction with regard to the structuring of the civil service, would fundamentally change the system of German civil service law and would interfere with the core of the structural principles guaranteed under Article 33(5) of the Basic Law; (ii) dividing civil servants into groups that have or do not have the right to strike based on their different functions would entail difficulties of distinction that are connected to the concept of public authority and would create a special category of civil servants with the right to strike or civil servants subject to collective agreements, who would be given the possibility of enforcing demands regarding their working conditions through labour dispute measures where applicable, while keeping their civil servant status - this would raise the question to what extent this category of personnel could still be regarded as having the legal status of civil servants; and (iii) to compensate for the civil servants’ lack of possibility to influence their employment conditions by measures of labour dispute, Article 33(5) of the Basic Law affords them, among others, the subjective public right to have the constitutionality of their alimentation reviewed in court, which would be almost completely meaningless if civil servants had the right to strike. The Government adds that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights.

The Committee notes the observations of the BDA in this respect, pointing to the 2018 decision of the Federal Constitutional Court and indicating that although the concept of freedom of association also includes the right to industrial action (strike and lock-out), this Convention and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) do not regulate or expressly provide for a right to strike. According to the BDA, the manner in which industrial action is organized in practice is always regulated in line with the particular Conventions but at the national level. The Committee also notes the observations of the DGB, claiming that there should be no absolute exclusion of civil servants from the right to strike irrespective of their duties and that a strike ban based on status, as established by the Federal Constitutional Court, represents a hindrance to any practical concordance between Articles 9(3) and 33 of the Basic Law. The DGB argues that a genuine balancing exercise would mean that the strike ban can only remain in place for those officials who genuinely exercise the sovereignty of the State and that civil servants who do not genuinely exercise the sovereignty of the State must benefit from the right to strike to preserve and promote their employment conditions.

The Committee takes due note of the ruling of the Federal Constitutional Court that for civil servants, irrespective of their duties, the strike ban amounts to an independent traditional principle of the career civil service system within the meaning of section 33(5) of the Basic Law, which justifies an overriding of freedom of association. Moreover, the Committee wishes to make clear that its task is not to judge the validity of the Court decision of 12 June 2018 (Case No. 2 BvR 1738/12), which is based upon issues of German national law and precedents. The Committee’s task is to examine the outcome of this decision on the recognition and exercise of the workers’ fundamental right to freedom of association. In this regard, the Committee observes with  regret  that the result of the Court’s decision is not in keeping with the Convention, inasmuch as it amounts to a general ban on the right to strike of civil servants based on their status, irrespective of their duties and responsibilities, and in particular a ban on the right of civil servants who are not exercising authority in the name of the State (such as teachers, postal workers and railway employees) to have recourse to strike action. In view of the above, the Committee encourages the Government to continue engaging in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation more closely with the Convention. Further noting that proceedings against the strike ban for civil servants are currently ongoing before the European Court of Human Rights, the Committee requests the Government to provide information on the resulting decision and on any impact it may have at the national level.

The Committee previously noted with interest that, in relation to the 2012 DGB observations denouncing the lack of a general prohibition of the use in non-essential services of temporary workers as strike breakers, national legislation had been amended to ensure that the receiver was no longer allowed to hire agency workers as strike breakers (according to section 11(5) of the Manpower Provision Act, in effect from 1 April 2017, the receiver shall not allow agency workers to work if the business is directly involved in a labour dispute). The Committee notes with interest the Government’s indication in this respect that: (i) the deployment of agency workers in industries affected by industrial action is only possible if there is an assurance that they will not take over the jobs of those on strike, either directly or indirectly; (ii) a constitutional complaint against this provision had been brought before the Federal Constitutional Court, claiming that there was a breach of the employer’s freedom of association in that its defences (specifically the use of agency workers during industrial action) were being illegitimately constrained, amounting to undue interference in the ability to carry out a profession; and (iii) in its decision of 19 June 2020 (Case No. 1 BvR 842/17), the Federal Constitutional Court found that the regulation concerned was constitutional and the applicant’s rights had not been infringed.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations received on 1 September 2015 from the International Organisation of Employers (IOE) and the Confederation of German Employers’ Associations (BDA), which are of a general nature. The Committee notes the observations received on 1 September 2017 from the BDA, endorsed by the IOE, which relate to matters examined by the Committee below. The Committee also notes the Government’s reply to the 2014 observations of the International Trade Union Confederation (ITUC) and to the 2012 observations from the German Confederation of Trade Unions (DGB). In particular, the Committee notes with interest that, in relation to the 2012 DGB observations denouncing the lack of a general prohibition of the use in non-essential services of temporary workers as strike breakers, the Government indicates that national legislation has been amended to ensure that the receiver is no longer allowed to hire agency workers as strike breakers. According to section 11(5) of the Manpower Provision Act, in effect from 1 April 2017, the receiver shall not allow agency workers to work if the business is directly involved in a labour dispute.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State to have recourse to strike action. In its previous observation, the Committee had noted with interest a ruling handed down by the Federal Administrative Court on 27 February 2014 holding that, given that the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights in the case of civil servants (Beamte) who are not active in genuinely sovereign domains (hoheitliche Befugnisse), for instance teachers in public schools, and this collision should be solved by the federal legislator; and that, in the case of civil servants (Beamte) who exercise sovereign authority, there is no collision with the European Convention on Human Rights and thus no need for action. The Committee had further noted the Government’s indication in this regard that, for civil servants (Beamte) not exercising sovereign authority, the legislator must bring about a balancing of the mutually exclusive legal positions under Article 33(5) of the Basic Law and the European Convention on Human Rights; that, in the meantime, the constitutional strike ban for civil servants (Beamte) remained in force; and that, given that union representatives would refer the matter to the Federal Constitutional Court and that two proceedings on the same subject matter were already pending before it, legislative measures should not forestall the clarification and resolution of the issues by that Court. In light of the above, the Committee had requested the Government to refrain in the future from imposing disciplinary sanctions against any civil servants not exercising authority in the name of the State who participate in peaceful strikes; and to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring possible ways of bringing the legislation into conformity with the Convention. The Committee also requested the Government to provide information on any ruling handed down by the Federal Constitutional Court on the subject.

The Committee notes that the Government reiterates that: (i) under the German Constitution, the public service (öffentlicher Dienst) is linked with the institutional guarantee of a professional civil service (Berufsbeamtentum), which must be regulated taking into account the traditional principles of the professional civil service (hergebrachte grundsätze des berufsbeamtenum); (ii) one of those principles is the prohibition on civil servants from participating in industrial action, as the “right to strike” is incompatible with the relationship of service and loyalty, and conflicts with the structural decision that relationships governed by civil service law are regulated by the legislature; and (iii) the prohibition on strike action is compensated for by various rights and principles, such as the principle of a salary commensurate with the civil service position; the characterization of the subjective rights of Article 33(5) of the Basic Law as being equivalent to fundamental rights; and participation rights of the leading organizations of trade unions and employers’ associations in the legislative process and other corporate participation rights in the Lander. With regard to the 2014 judgement of the Federal Administrative Court, the Government states that, in its view, the case law of the European Court of Human Rights is not capable of altering these constitutional circumstances, since, despite a functional approach to exception clauses relating to sovereignty, the case law on Article 11 of the European Convention on Human Rights (ECHR) does not exclude the classification of teachers as “members of the administration of the State” within the meaning of the second sentence of Article 11(2). On the contrary, the Government believes that the prohibition on strike action of teachers who have civil servant status is compatible with Article 11(1), given that the interference is justified under Article 11(2) by the legitimate aim of guaranteeing the right to education. The Government adds that the relevant decisions of the Federal Administrative Court are currently the subject of proceedings before the Federal Constitutional Court.

The Committee notes that, according to the BDA: (i) the Federal Administrative Court, in its 2014 judgment, held that, on one side the general strike prohibition on civil servants applies as a conventional principle pursuant to Article 33(5) of the Basic Law and, on the other side, this prohibition of strikes for officials outside the genuinely sovereign domain is incompatible with the freedom of association of Article 11 of the ECHR; (ii) the Federal Administrative Court confirmed in its decision of 26 February 2015 that it is the task of the federal legislator to establish a balance between the incompatible requirements of Article 33(5) of the Basic Law and Article 11 of the ECHR; and that, as long as this has not been done, the public-law strike prohibition, continues to apply and is a disciplinary rule; (iii) the strike ban in Article 33(5) of the Basic Law constitutes an exception to the right to freedom of association guaranteed in Article 9(3) of the Basic Law; (iv) the legislator has different options to adopt a compliant legislation, for example, as a functional matter, by determining areas of genuinely sovereign domains for which a general strike ban should apply, and areas of public administration, where the unilateral regulatory power of the employer should be restricted to extend the participation of representative organizations in the public service; and (v) this issue will be further discussed at national level by the Government and the social partners. Generally, the BDA considers that: (i) as there is no existing legal regulation fully encompassing industrial action, the German employers advocate for a comprehensive regulatory approach, which would take into account the 1950s and 1960s jurisprudence, highlighting that strikes are socio-politically and economically highly undesirable and involve negative consequences for the German national economy, and that this holds especially true in times of growing internationalization and digitalization; (ii) in order to re-establish the balance between the social partners, the legislator must establish appropriate regulations correcting significantly the aberrations created by jurisprudence in past decades and establishing a numerus clausus of permissible means of industrial action (essentially lockout for employers and strikes for employees; any means of industrial action involving a “flash mob” must be illegitimate); and (iii) BDA opposes a right to strike for civil servants because they have duties of loyalty towards their employer (the State and the community) and because there would be great discontent in the general public if civil servants went on strike for a wage increase since their payment is indirectly financed by the community through taxes.

The Committee notes with concern that the more recent ruling of the Federal Administrative Court handed down on 26 February 2015 upholds the disciplinary action imposed on a teacher with civil servant status (Beamte) for having participated in industrial action. The Federal Administrative Court reiterates that the conflict between the general strike prohibition on civil servants who are not engaged in genuinely sovereign domains pursuant to Article 33(5) of the Basic Law and, on the other side, the right to freedom of association under Article 11 of the ECHR, can only be solved by the federal legislator and not by the tribunals. Noting that the Federal Constitutional Court will soon decide on the constitutional complaint raised following the Federal Administrative Court judgment of 27 February 2014, the Committee requests the Government to provide a copy of that decision, as soon as it is handed down, as well as any other pending decision to be issued by the Federal Constitutional Court on the subject. In view of the collision ascertained by the Federal Administrative Court between Article 33(5) of the Basic Law and Article 11 of the ECHR, and in light of the persisting need highlighted by the Committee for many years to bring the legislation into full conformity with the Convention with regard to the same aspect, the Committee once again requests the Government to: (i) refrain, pending the relevant decision of the Federal Constitutional Court, from imposing disciplinary sanctions against civil servants not exercising authority in the name of the State (such as teachers, postal workers and railway employees) who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to finding possible ways of aligning the legislation with the Convention.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the 2012 observations of the International Organisation of Employers (IOE), as well as the observations received on 1 September 2014 from the IOE and the Confederation of German Employers’ Associations (BDA) according to which the Convention is fully implemented in practice. The Committee also notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC) concerning the practical application of the Convention and requests the Government to provide its comments thereon.

The Committee notes the detailed observations of 2012 from the German Confederation of Trade Unions (DGB) concerning the strike ban for civil servants (Beamte) denouncing in particular that the Government still insists on the congruency between the status of civil servant (Beamter) and the exercise of public authority, although: (i) the granting of the status of civil servant (Beamter) is not based on duties and responsibilities but rather on budgetary considerations (for example, the pension of civil servants only has to be financed at the end of their career instead of being funded continuously by the employer during the period of service); (ii) the purely pedagogic activity of teachers only includes public authority elements in higher functions and is also exercised by public service employees (Arbeitnehmer des öffentlichen Dienstes) and by private sector employees in the case of private schools; and (iii) civil servants (Beamte) working in state enterprises perform the same tasks after privatization. The Committee also notes the DGB’s emphasis that the dimension of the issue is still considerable, because it affects 1.65 million civil servants (Beamte) of which 600,000 are working as teachers in public schools and 130,000 are working in privatized state enterprises in the railway and postal sectors. Furthermore, the Committee notes that the DGB also criticizes the use in non-essential services of temporary workers as strike breakers, providing concrete examples of such use in practice and denouncing the lack of a general prohibition. The Committee requests the Government to provide its comments on the above observations of the DGB.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that it has been requesting for a number of years the adoption of measures to recognize the right of public servants who are not exercising authority in the name of the State, to have recourse to strike action. In its previous observation, the Committee noted with interest a ruling handed down by the Düsseldorf Administrative Court in 2010 holding that, since the general strike prohibition for civil servants in Germany is contrary to international law, the imposition of disciplinary measures for participation in a strike is unacceptable when the relevant civil servant (Beamter) – such as, in the present case, the teacher – does not pertain to the administration of the State (“principle of friendly interpretation towards international law”). The Committee requested the Government to indicate any concrete measures taken or envisaged, in the light of the above ruling, to ensure that all public servants who do not exercise authority in the name of the State can have recourse to strike action in defence of their economic, social and occupational interests.

The Committee notes that the Government refers to a ruling of 27 February 2014 handed down by the Federal Administrative Court in the appeal proceedings against the above decision of the Düsseldorf Administrative Court. The Committee notes with interest that the court holds that: (i) while the constitutional strike ban depends on the status group and is valid for all civil servants (Beamte) irrespective of their duties and responsibilities, there is a collision with the European Convention on Human Rights in the case of civil servants (Beamte) who are not active in genuinely sovereign domains, for instance teachers in public schools, and this collision should be solved by the federal legislator; and (ii) in the case of civil servants (Beamte) who exercise sovereign authority – for example, army, police or law enforcement in general, judiciary, diplomacy, and public administration units at federal/state/local level elaborating, implementing and enforcing legal acts – there is no collision with the European Convention on Human Rights and thus there is no need for action. The Government adds that: (i) for civil servants (Beamte) who do not exercise sovereign authority (hoheitliche Befugnisse), the legislator must therefore bring about a balancing of the mutually exclusive legal positions under article 33(5) of the Basic Law and the European Convention on Human Rights; (ii) in the meantime, the constitutional strike ban for civil servants (Beamte) remains in force; and (iii) the ruling raises numerous constitutional questions, and, given that union representatives announced they would refer the matter to the Federal Constitutional Court and that two proceedings on the same subject matter are already pending before it, legislative measures should not forestall the clarification and resolution of the issues by that Court.

Recalling that it has been highlighting for many years that a strike restriction or even prohibition may be applied only in the case of public servants exercising authority in the name of the State, the Committee reiterates its view that the duties and responsibilities of teachers, postal workers and railway employees, irrespective of their status, do not amount to exercising authority in the name of the State, and that they should therefore be allowed to exercise the right to strike, without prejudice to the possibility of establishing a minimum service. In light of the abovementioned decision of the Federal Administrative Court and given the still large numbers of civil servants (Beamte) not exercising authority in the name of the State affected by the strike ban, the Committee requests the Government: (i) to refrain in the future from imposing disciplinary sanctions against any civil servants not exercising authority in the name of the State who participate in peaceful strikes; and (ii) to engage in a comprehensive national dialogue with representative organizations in the public service with a view to exploring possible ways of bringing the legislation into conformity with the Convention. The Committee also requests the Government to provide information on any ruling handed down by the Federal Constitutional Court on the subject.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 on the application of the Convention as well as the Government’s observations thereon.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. The Committee recalls that it has been requesting for a number of years the adoption of measures so as to recognize the right of public servants (Beamte including postal workers, railway employees and teachers among others) who are not exercising authority in the name of the State, to have recourse to strike action.

The Committee notes from the ITUC observations that the Düsseldorf Administrative Court handed down a ruling dated 15 December 2010 setting aside the disciplinary punishment of a teacher with civil servant status (Beamte) who had participated in a strike. In this regard, the Committee notes with interest that, in its ruling, the Düsseldorf Administration Court held that, since the general strike prohibition for civil servants in Germany is probably contrary to international law (in particular to the European Convention on Human Rights), the imposition of disciplinary measures for participation in a strike is unacceptable when the relevant civil servant – such as, in the present case, the teacher – does not pertain to the administration of the State (“principle of friendly interpretation towards international law”). The Committee also notes that the Government states in its report that this decision only relates to an individual case and does not advocate a right to strike for civil servants in general. The Government also stresses that it stands by the strike ban for all civil servants (Beamte), which constitutes a traditional principle of the civil servants under article 33(5) of the Basic Law and derives from the civil servants’ duty of allegiance and obligation to fulfil their duties as a permanent function (i.e. without interruption) enshrined in article 33(4). According to the Government’s report, the right to strike in the public service depends on the status group – employees in the public service (Arbeitnehmer des öffentlichen Dienstes) do enjoy the full right to strike whereas civil servants do not have the right to strike on constitutional grounds. The Committee further notes the Government’s indication that, since the Basic Law does not specify which tasks are to be entrusted to civil servants (Beamte), the Government has a certain constitutional leeway in the delegation of the tasks and prefers to use civil servants where the State interferes in the rights of individuals for the public good.

The Committee once again recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While accepting that the right to strike may be restricted or even prohibited in the public service, the Committee has clearly established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. The Committee is of the view that teachers, postal workers and railway employees with the status of civil servant (Beamte) do not exercise authority in the name of the State and should therefore be allowed, without prejudice to the possibility of establishing a minimum service, to exercise the right to strike, which the Committee understands is available to private sector teachers, postal workers and railway employees as well as to teachers with the status of employee in the public sector (Arbeitnehmer des öffentlichen Dienstes). The Committee requests the Government to indicate in its next report any concrete measures taken or envisaged, in the light of the abovementioned ruling of the Düsseldorf Administrative Court, to ensure that all public servants who do not exercise authority in the name of the State can have recourse to strike action in defence of their economic, social and occupational interests.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention. 

Article 3 of the Convention. The Committee recalls that it has been requesting for a number of years the adoption of measures so as to recognize the right of public servants (“Beamte” including postal workers, railway employees and teachers among others) who are not exercising authority in the name of the State, to have recourse to strike action. In this respect, the Committee had noted in several of its previous comments that innovative developments took place with a view to devising draft legislation on the comprehensive modernization of the law governing civil servants, in collaboration with the trade unions concerned, in order to gain broad support for the considerable changes in conditions of employment involved in the new draft legislation. The Committee notes that the Government indicates in its report that there have been no changes since the previous report.

The Committee once again recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While accepting that the right to strike may be restricted or even prohibited in the public service, the Committee has clearly established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. In the Committee’s view, postal workers, railway employees and teachers among others are not included in this category and should therefore have the right to strike, although the maintenance of a minimum service may be foreseen in the event of strikes in these sectors.

In light of the foregoing, the Committee once again requests the Government to take the necessary measures to ensure that public servants who do not exercise authority in the name of the State can have recourse to strike action in defence of their economic, social and occupational interests. The Committee requests the Government to indicate in its next report any concrete measures adopted in this respect.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report and its reply to the 2006 comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation). The Committee further notes the comments submitted by the ITUC of 28 August 2007 concerning issues already raised by the Committee.

The Committee recalls that it has been requesting for a number of years the adoption of measures so as to recognize the right of public servants (“Beamte” including postal workers, railway employees and teachers among others) who are not exercising authority in the name of the State, to have recourse to strike action. In this respect, the Committee had noted in previous comments that innovative developments took place with a view to devising draft legislation on the comprehensive modernization of the law governing civil servants, in collaboration with the trade unions concerned, in order to gain broad support for the considerable changes in conditions of employment involved in the new draft legislation.

The Committee notes that the Government indicates that: (1) the draft legislation concerning public servants was dropped following the change in Government: (2) Convention No. 87, by virtue of its very origin, does not have any bearing on the prohibition of strike action by civil servants and strike action for civil service is subject to a general prohibition under the terms of constitutional law: (3) the legal status of civil servants must, under constitutional law, be the same for all and there can be no distinction in respect of the ban of strike according to the functions of individual categories of civil servants and there is no differentiation by functional category with regard to the extent to which they are bound by their obligations. (4) Civil servants have no particular right to carry out a particular task or to continue to carry out what they regard as their particular function and it is for their superiors to decide where to deploy them, and to transfer them within a department as required. (5) The mobility required by the public administration would be significantly impaired if the legal status of civil servants differed according to their particular functions. (6) The call to accord some civil servants the right to strike, depending on their particular functions, is therefore not consonant with the fundamental principles of the German civil service and would be detrimental to the effective and responsible discharge of the administration’s duties in the general public interest.

The Committee recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While accepting that the right to strike may be restricted or even prohibited in the public service, the Committee has clearly established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. In the Committee’s view, postal workers, railway employees and teachers among others are not included in this category and should therefore have the right to strike, although the maintenance of a minimum service may be foreseen in the event of strikes in these sectors.

In light of the foregoing, the Committee requests the Government to take the necessary measures to ensure that public servants who do not exercise authority in the name of the State can have recourse to strike action in defence of their economic, social and occupational interests. The Committee requests the Government to indicate in its next report any concrete measures adopted in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer largely to pending issues relating to the legislation and the application of the Convention in practice that are already under examination. The Committee notes the recent communication of the Government which replies to the ICFTU’s comments.

The Committee will examine the ICFTU’s comments and the Government’s reply at its next session and requests the Government, in the context of the regular reporting cycle, to provide its observations for the November-December 2007 session on all the issues relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information provided in the Government’s report.

Articles 3 and 10 of the Convention. Right of public service organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike. The Committee has been requesting for a number of years the adoption of measures so as to recognize the right of public servants ("Beamte" including postal workers, railway employees and teachers among others) who are not exercising authority in the name of the State, to have recourse to strike action. The Committee takes note in this respect of the comments made by the ICFTU in a communication dated 19 July 2004, according to which the main limitation on civil servants’ rights, including teachers, railway employees and postal employees, is still the denial of the right to strike.

The Committee notes from the Government’s latest report that the conditions of employment of civil servants are laid down in national laws and that there are no formal collective negotiations with the trade unions, although the latter are involved in consultative hearings in accordance with a provision in the Civil Servants’ Act. In addition to this, last year innovative developments took place with a view to coming up with a draft legislation on the comprehensive modernization of the law governing civil servants, in collaboration with the trade unions concerned, in order to gain broad support for the considerable changes in conditions of employment involved in the new draft legislation. Against this backdrop, even the main issues paper on which the new legislation will be based was drawn up in collaboration with the leaders of the main unions. Thus, it has been possible to work out a conceptual framework creating conditions for a more performance-related approach in the public service. Constructive dialogue with the unions has enabled the Government to harmonize the expectations and views of the two parties, which is important, given the scope of the proposed reform which affects about 1.7 million civil servants at the federal, Länder and local levels.

Noting that a major reform of the civil service is under way, the Committee hopes that the Government will take due account of the longstanding comments of the Committee on the need to ensure that public servants ("Beamte" including postal workers, railway employees and teachers) who are not exercising authority in the name of the State, can have recourse to strike action in defence of their economic, social and occupational interests. The Committee requests that the Government indicate in its next report any measures in this respect and to communicate any relevant legislative texts.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the comments made by the International Confederation of Free Trade Unions (ICFTU) concerning the denial of the right to strike in the civil service. The Committee recalls that it has been examining this issue for a number of years and dealt with it in its latest comments (see 2003 observation, 74th Session). The Committee also notes that several other comments made by the ICFTU (denial of collective bargaining rights of teachers in the public service) concern Convention No. 98 and have also already been raised by the Committee in its previous comments under that Convention. The Committee requests the Government to transmit its observations on the comments made by the ICFTU and the pending comments of the Committee in its next reports on Conventions Nos. 87 and 98 due for the regular reporting cycle in 2005.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the information provided in the Government’s report.

Articles 3 and 10 of the Convention. Right of public service organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike. The Committee has been requesting for a number of years the adoption of measures so as to recognize the right of public servants ("Beamte" including postal workers, railway employees, and teachers) who are not exercising authority in the name of the State to have recourse to strike action.

The Committee notes from the Government’s report that not every job which is currently performed by civil servants will continue to have civil servant status in the future. The Committee notes in particular from the Government’s report, that every principal must decide according to the terms of the Constitution (which limits public service to the "execution of authority in the name of the State") those public duties which are to be undertaken by civil servants. The Committee also takes note of statistical information provided in the Government’s report according to which in 2001 career public servants accounted for 72 per cent of teachers, 23 per cent of teaching personnel in higher education institutions, and 35 per cent of people employed in public service. The Committee notes, moreover, that the number of civil servants in the privatized companies Deutsche Bahn and Deutsche Post continues to decrease and has already declined from around 60,900 to 58,000, and from 175,000 to 170,000 respectively, in the period from 31 December 2001 to 31 December 2002.

Recalling that the organizations of teachers, postal workers and railway employees, among others, should have the right to organize their programmes and activities, including calls for industrial action, free from interference by the public authorities, the Committee requests the Government to keep it informed of any measures envisaged to ensure that these workers will not be sanctioned for exercising legitimate trade union activities, including industrial action, if they so wish, in defence of their economic, social and occupational interests. The Committee further requests the Government to keep it informed of the evolution of statistical trends concerning the number of posts which will change status, especially in the areas of postal services, railways and education.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the information provided in the Government’s report. It also notes the comments made by the German Confederation of Trade Unions (DGB) and the German Employers’ Associations (BDA), and the Government’s detailed comments thereon.

Articles 3 and 10 of the Convention. Right of public servants’ organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike. The Committee has been referring for a number of years to the importance of taking the necessary measures so as not to sanction public servants ("Beamte" including postal workers, railway employees and teachers) who are not exercising authority in the name of the State for taking collective action, which includes recourse to strike. The Committee notes from the Government’s report that there is no change in the law which continues to lay down the rights and duties of civil servants ("Beamte") in terms of their status rather than their function, and that the sanctioning of civil servants who have violated a continuing ban on strikes cannot be ruled out for the future as a result of a Federal Constitutional Court ruling in 2002 to the effect that disciplinary law applied to civil servants working in the public telecommunications company. On this last point, the Committee would point out that it has always considered that telecommunications may be considered an essential service in the strict sense of the term and that workers in that sector may thus be restricted in their right to exercise collective action, as may be the case for public servants exercising authority in the name of the State.

The Committee recalls, however, that its previous comments have referred to strike restrictions for public servants, including postal workers, railway employees, teachers, etc. The Committee considers that this restriction placed on the right to strike of public servants goes significantly beyond the exceptions permitted in respect of essential services and public servants exercising authority in the name of the State. In order to have a fuller understanding of the impact of the restriction on the right to strike for "Beamte", the Committee requests the Government to furnish additional information in its next report on the number of civil servants considered to be "Beamte" and the types of activities carried out by them, as well as to communicate any available information on the evolution in the number of workers and the sectors of activities covered within the scope of "Beamte" due to privatization.

Emphasizing that organizations of teachers, postal workers and railway employees, among others, should have the right to organize their programmes and activities, including calls for industrial action, free from interference by the public authorities, the Committee once again requests the Government to indicate in its next report the measures envisaged to open the way to the full implementation of Articles 3 and 10 of the Convention by ensuring that public servants who do not exercise authority in the name of the State and who cannot be considered as providing an essential service in the strict sense of the term, will not be sanctioned for exercising legitimate trade union activities, including industrial action if they so wish, in defence of their economic, social and occupational interests. The Committee hopes that the Government will make every effort to find constructive solutions in the very near future to this longstanding issue.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report.

Articles 3 and 10 of the Convention. Right of public service organizations to formulate their programmes in defence of the occupational interests of their members including by recourse to collective action and strike.  With respect to the denial of the right to strike of civil servants ("Beamte"), which the Committee has previously commented upon, the Committee notes that the Government in its report reiterates that civil servants, irrespective of their functions, do not enjoy the right to strike. The Government points out that the ban on strikes for civil servants ("Beamte") must not be assessed in terms of whether the individual civil servant is also entrusted with sovereign tasks. The status of civil servant ("Beamte") is the sole criterion for assessing the rights and obligations of a civil servant. Therefore, in view of the tendency to privatize public functions, consideration could be given in the future to transferring these functions to workers or employees who do not have the status of civil servant. As a result, those functions would be carried out by workers and white-collar employees who do have the right to strike. The growing tendency to delegate functions that do not belong to the State’s sovereign field of activity to public service employees can also lead to a decrease in the proportion of civil servants. However, the Government concludes that this does not affect the legal status of civil servants in employment at the present time, since they have obtained that status voluntarily and, according to civil service law, they cannot be forced to relinquish that status.

While noting the Government’s explanation, the Committee recalls, however, that since 1959 it has been expressing the opinion that the prohibition of strikes by public servants other than public officials exercising authority in the name of the State may constitute a considerable restriction of the potential activities of trade unions and that this restriction may run counter to Article 8, paragraph 2, of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 147). The Committee must insist on the importance of taking the necessary measures so as not to sanction public servants ("Beamte") who are not exercising authority in the name of the State (postal service employees, railway employees, teachers or others) for taking collective action, which includes recourse to strike, if they so wish. The Committee requests the Government to indicate any measures taken in this respect in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report.

With respect to the denial of the right to strike in the public service, which the Committee has previously commented upon, the Committee notes that the Government in its report reiterates that civil servants, irrespective of their functions, do not enjoy the right to strike. In support of this position, the Government relies on provisions of the Constitution, and the fact that a civil servant has no entitlement to be appointed to a particular function or to continue performing previously assigned duties, since this is a discretionary power of the superiors. The Government stresses the importance of guaranteeing the mobility of officials, and contends that the mobility required by public servants would be seriously impaired if their legal status varied according to their individual functions and they were granted the right to strike depending on their duties. The Government indicates that the Public Service Reform Act, 1997 introduced improvements regarding officials' mobility with a view to ensuring optimal use of staff resources.

Furthermore, the Committee notes the Government's concern regarding the sanctioning of individual categories of officials in breach of the strike ban. The Government also states that even if there were political consensus, which there is not, on such a major decision as confining the ban on strikes to those exercising authority in the name of the State, it would require a long transitional period, given that the officials concerned would not consent to being dismissed from their office as civil servants in order to be transferred to salaried employee status. The Government also reiterates that, in its opinion, it could be deduced from the discussions that led to the adoption of the Convention that a ban on strikes for civil servants would not be in violation of the Convention.

The Committee recalls that it has always considered that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. While accepting that the right to strike may be restricted or even prohibited in the public service, the Committee has clearly established that such a limitation may be applied only in the case of public servants exercising authority in the name of the State. While noting the particular legal and policy considerations that have given rise to a broad restriction on the right to strike for the German public service, the Committee must, however, endeavour to maintain uniform criteria when determining the compatibility of legislation with the provisions of the Convention.

The Committee, therefore, once again requests the Government to indicate the measures taken or contemplated to ensure that public servants who do not exercise authority in the name of the State and their organizations, are not denied the right to organize their activities and formulate their programmes in defence of their economic, social and occupational interests by means which include strikes, if they so wish, pursuant to Articles 3 and 10 of the Convention.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information contained in the Government's report.

With regard to the denial of the right to strike in the public service, the Government admits in its report that the right to strike is not recognized for public servants irrespective of the functions that they exercise, which might justify different treatment. With regard to public servants exercising authority in the name of the State, the Government states that these functions by their nature form part of the functions assigned to public servants. They are not limited in the strict sense of the term and include a substantial number of general administrative services. Nevertheless, the Government reiterates the information that it provided previously to the effect that it has adopted a policy of reducing public services and limiting them to essential activities and that it therefore favours the privatization of other services. Of the 1,000 enterprises with public participation in 1982, the number has now been reduced to 400. With regard more specifically to employees in the railways and postal services, which are subject to privatization measures, the Government recalls that they can continue to benefit from their status as public servants. In this case, the right to strike is denied to them; however, if they so wish, they may conclude a contract of employment directly with the privatized company. According to the Government, this issue will soon become academic since there will no longer be any public servants employed in privatized enterprises.

The Committee notes the information supplied by the Government.

The Committee recalls, however, that since 1959 it has been expressing the opinion that the prohibition of strikes by public servants other than public officials acting in the name of the public powers may constitute a considerable restriction of the potential activities of trade unions and that this restriction may run counter to Article 8, paragraph 2, of the Convention (see the reminder of this position in the 1994 General Survey on freedom of association and collective bargaining, paragraph 147). The Committee emphasizes the importance of taking the necessary measures so as not to penalize public servants who are not exercising authority in the name of the State, whether they are railway workers, postal workers, teachers or others, or their organizations, for having exercised the right to strike. The Committee requests the Government to indicate any measure taken in this respect in its next report.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information contained in the Government's report and the comments dated 8 February 1994 made by the German Confederation of Trade Unions (DGB). It also notes the statements by the Government representative to the Conference Committee in June 1994 and the ensuing discussion.

1. Access to the workplace for trade union officials who do not belong to the enterprise

The Government, referring to its previous comments and reports, assures that it fully complies with the requirements of the Convention in this respect. On the question of guaranteeing trade union officials, and even those who do not belong to an enterprise, access to the workplace if they consider it necessary, the Government explains in detail that the Federal Labour Court, in a ruling handed down on 25 March 1992, has ruled that a trade union is represented in an enterprise if at least one worker in the enterprise is a member of the union and that a simple statement, certified by a notary, which does not mention the name of the member of the trade union, is sufficient to establish that the trade union is represented in the enterprise. In the opinion of the DGB, the matter of the right of access of trade union representatives who do not belong to the enterprise has not been settled. The DGB states that this right is often contested in practice, for example in the postal services (POSTDIENST). In this respect, the Government stated previously that 92 per cent of postal workers are members of three trade unions, which are already represented in these services.

The Committee notes with interest the ruling by the Federal Labour Court dated 25 March 1992 and notes that as a result a trade union is represented in an enterprise, without any restriction, when a single worker is a member of the union, the name of the worker not having to be divulged. The Committee considers, in the light of the available information, and particularly the recent decision by the Federal Labour Court previously referred to, that the provisions of the Convention no longer appear to be in contradiction with the Convention and hopes that measures will be taken to ensure that the practice followed is in accordance with the requirements of the Convention.

2. Requisitioning of postal service employees (Beamte) to replace striking state employees and manual workers (Angestelle) in the postal services

The Committee notes with satisfaction the Government's statement in its report that it has drawn its conclusions from ruling No. 88.103 of the Federal Constitutional Court, handed down on 2 March 1993, and that while there is no law to justify its intervention, no federal employee will be requisitioned in future to replace workers who are participating in a legal strike. The Committee also notes the assurances given by the Government that other employers, and particularly the States (Länder) and the municipal authorities, will also take this decision into account.

3. Denial of the right to strike in the public service

The Committee notes the information supplied by the Government to the effect that the question of restricting the right to strike of employees of the railways and postal services is unlikely to remain an issue in practice, since privatization is envisaged. However, the employees affected will continue to enjoy their status as public employees in the privatized enterprises. In this context, the question arises of reducing the number of public employees to include only public servants exercising authority in the name of the State.

The Committee once again states that although it has always admitted that the right to strike may be restricted or prohibited in the public service, such a prohibition would become meaningless if the legislation defined the public service too broadly. Although the Committee cannot overlook the special characteristics and legal and social traditions of each country, it must, however, endeavour to establish fairly uniform criteria in order to examine the compatibility of legislation with the provisions of the Convention. In these conditions, the prohibition of the right to strike should not be imposed on public servants who do not exercise authority in the name of the State (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 158).

The Committee therefore requests the Government to take the necessary measures to ensure that public servants who do not exercise authority in the name of the State and their organizations are not denied the right to organize their activities and formulate their programmes in defence of their economic, social and occupational interests by means which include strikes, if they so wish, in accordance with the principles set out in Articles 3 and 10 of the Convention. The Committee requests the Government to indicate any measure taken in this respect in its next report.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information contained in the Government's report in reply to the comments of 25 February 1993 of the German Confederation of Trade Unions (DGB). It also notes the conclusions of the Committee on Freedom of Association in Case No. 1692 (291st Report of the Committee, paras. 191-227, approved by the Governing Body at its 258th Session, November 1993).

1. Denial of the right of access to the workplace for trade union officials who do not belong to the enterprise. The Committee recalls that the DGB considers that, since there are no enterprise unions in Germany, trade union officials from outside the enterprise must be able to look after the interests of workers in the enterprise. In its previous reports, the Government considered that there was no need to take any legislative measures to ensure that such representatives have access to the enterprise since, according to the Government, there was no dispute on this issue between the employers and the workers.

In its comments of February 1993 the DGB indicates that the provisions of section 2(2) of the 1972 Act respecting the organization of enterprises, granting right of access to the workplace to the representatives of unions represented in the enterprise, are too vague. It adds that the text in question does not deal with the right of access of trade union representatives from outside the enterprise in establishments depending on the Church and other similar establishments and recalls that the Decision of 1981 of the Federal Constitutional Court does not grant access to trade union representatives from outside the enterprise. It considers that such a situation is at variance with Article 3 of the Convention which guarantees the right of workers to elect their representatives in full freedom. It explains that many of the activities involved in representing the interests of workers can only be carried out by trade union representatives from outside the enterprise since a single trade union member working in the enterprise could not possibly cope with all the activities, and it considers that the issue must be regulated by law.

The Committee notes the Government's statement in its report that with regard to section 2(2) of the 1972 Act respecting the organization of enterprises, the Federal Labour Court ruled in a decision of 25 March 1992 that a trade union is represented in an enterprise when at least one worker in the enterprise is a member of it and that it is for the trade union in question to provide evidence of such membership. According to the Government, this issue has not as yet given rise to any disputes. It indicates that as regards, for example, the institutions of the post and communications services, section 2(2) of the Act respecting representatives of federal staff, which grants the right of access only to delegates of unions represented in these institutions, is of little relevance in practice since 92 per cent of the workers concerned belong to the three unions represented in them. There is therefore no need to grant the right of access to workplaces to trade union representatives from outside the institutions in question.

The Committee again recalls that it has indicated several times that to deny the right of access to the workplace to trade union representatives from outside the enterprise, where these representatives consider that they do need access, is to restrict the right of workers' and employers' organizations to organize their management and activities in full freedom, and that the public authorities must refrain from any intervention likely to restrict this right. While recognizing that the right of access should not affect unduly the activities of the enterprise concerned, the Committee again requests the Government to indicate in its next report the measures taken to guarantee that trade union representatives, even if they do not belong to the enterprise, have access to the workplace should they consider it necessary.

2. Requisitioning of postal service employees (Beamte) to replace striking state employees and manual workers (Angestellte) in the postal services. With reference to its previous comments, the Committee notes with interest the ruling of 5 April 1993 of the Federal Constitutional Court to the effect that the secondment of public service employees (Beamte) to departments where state employees and manual workers (Angestellte) are on strike is not compatible with the German Constitution unless such secondment is expressly regulated by law. It expresses the firm hope that, in accordance with the above ruling, the Government will not resort in future to requisitioning public employees to break a strike.

3. Ban on strikes in the public service. The Committee notes that the DGB points out that the nature of public service duties and the relationship of loyalty by which public servants are banned may not be relied on to diminish the rights of parties to collective bargaining provided for in article 9(3) of the Constitution. The DGB therefore considers that public employees other than those acting as agents of the public authority should have the right to strike, and that it is not possible, under article 33(5) of the Constitution, to exclude all public servants from the right to strike.

The Committee notes with regret that the Government states once again that the ban on strikes for all public servants, regardless of their functions, does not infringe the Convention which, the Government states, applies only to workers bound by a private law contract. It adds that public servants may not resort to strikes in view of the nature of their relationship of confidentiality and loyalty which is governed by public law. This position is justified in particular by the fact that under article 33(5) of the Constitution the legislator must, in determining conditions of employment, take account of the fundamental principles and rules of the public service and the principles of assistance to the population and maintenance of public services. According to the opinion and case law of the courts, the concept of sovereign powers contained in article 33(4) of the Constitution is not confined to those authorities that traditionally intervene (police, tax authorities, penal system, etc.) but extends wider in a modern State which plays a role in a society and industry.

The Committee must again recall that the principle whereby the right to strike may be restricted or prohibited in the public service or in essential services would become meaningless if the legislation defines the public service or essential services too broadly. The prohibition should therefore be confined to public servants exercising authority in the name of the State or to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey on Freedom of Association and Collective Bargaining, paras. 158 and 159).

It therefore asks the Government to take the necessary steps to guarantee to public servants other than those exercising authority in the name of the State and to their organizations, the right to organize their activities and formulate their programmes of action to defend their economic, social and occupational interests, including by resorting to strike action, without any interference on the part of the public authorities, in accordance with the principles laid down in Articles 3 and 10 of the Convention. It asks the Government to indicate any measures taken to this end in its next report.

Moreover, the Committee notes the comments submitted by the DGB on 8 February 1994 which were received by the Office as the Committee had already begun its regular session. It will examine the substance of these comments at its next session in the light of the Government's forthcoming report.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information supplied by the Government in its report.

1. Access to the workplace for trade union officials who do not belong to an enterprise. In reply to the Committee's previous comments in relation to this right of access, the Government once again considers that there is no need to amend its legislation in order to guarantee the right of access by union representatives unconnected with the workplace.

The Committee recalls once again that Article 3 of the Convention states that workers' organizations have the right to organize their administration and activities and that the public authorities should refrain from any interference which would restrict this right. The Committee would refer in this respect to the point of view of the German Confederation of Trade Unions (DGB), described in detail in its observation of 1989. The DGB stated that the fact that in the Federal Republic of Germany there were no work unions and that trade unions were totally independent of individual enterprises meant that the interests of the workers had to be represented by trade union officials who did not belong to the enterprise in question. However, an order of the Federal Constitutional Court handed down in 1981, had the result of denying the right of access to the workplace for trade union officials who did not belong to an enterprise and the Government, as a result of this order, had not yet adapted its legislation to the requirements of the Convention. While acknowledging that this right of access should not affect unduly the running of the enterprise concerned, the Committee requests the Government to indicate in its next report the measures that have been taken to guarantee trade union officials, including those who do not belong to an enterprise, access to the workplace if they consider it necessary.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public service. In reply to the Committee's previous comments on the requisitioning of civil servants, the Government states that the Federal Constitutional Court has not yet handed down its ruling on this matter and it prefers not to comment on the question until a ruling is issued.

With respect to the right to strike of public servants who do not act in a capacity as agents of the public authority, the Government states that the prohibition against striking which arises from the Basic Law applies to all civil servants, regardless of what tasks they perform. The legal position of civil servants cannot be construed differently according to the area of activity since the Constitution regards the professional civil service as a unity.

The Committee recalls once again that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services would become meaningless if the legislation defines the public service or essential services too broadly. Accordingly, any prohibition of strikes should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Therefore, the Committee would once again request the Government:

- to indicate in its next report the measures that have been taken to ensure that public servants who do not act in a capacity as agents of the public authority, are not denied the right to strike;

- to transmit to it the ruling of the Federal Constitutional Court when it has been handed down.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in its report in reply to the Committee's previous comments, and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1528 (277th Report, approved by the Governing Body at its 249th Session in February 1991).

The Committee recalls that its previous comments concerned the following points:

- denial of the right of access to the workplace for trade union officials who do not belong to an enterprise;

- requisitioning of employees in the postal service having the status of civil servants (Beamte), who do not act in a capacity as agents of the public authority, in order to replace striking postal workers having the status of state manual workers or employees (Angestellte);

- protest strikes.

1. Access to the workplace for trade union officials who do not belong to an enterprise. On this point, the Government refers to its previous comments and states, basically, that: Convention No. 87 does not impose such an obligation upon it and, even if such were the case, it would not be obliged to take action since the Committee itself only requires that trade union officials have access when necessary and this question is not a point of dispute between employers and workers.

The Committee recalls that it has been making comments for many years on this point, which was the subject of a discussion in the Committee on the Application of Standards at the International Labour Conference in 1985. It refers, in particular, to its observation of 1989 in which it described in detail the point of view of the German Confederaion of Trade Unions (DGB) on this matter. It requests the Government to indicate in its next report the measures that have been taken to guarantee trade union officials, including those who do not belong to an enterprise, access to the workplace in an enterprise if they consider it necessary.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public service. The Government states, in this connection, that the Federal Constitutional Court has not yet handed down its ruling on this matter and it prefers not to comment on the question until a ruling is issued.

The Committee recalls once again that, when national legislation prohibits or restricts strikes in the public service or in essential services, such restrictions become meaningless if the legislation defines the public service or essential services too broadly. Accordingly, any prohibition of strikes should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee also refers to the decision of the Committee on Freedom of Association in Case No. 1528, in which that Committee ruled that teachers having the status of civil servants (Beamtete Lehrer) should be able to enjoy the right to strike.

The Committee therefore requests the Government:

- to indicate in its next report the measures that have been taken to guarantee that public servants who do not act in a capacity as agents of the public authority, and particularly teachers (Beamtete Lehrer) and postmen, counter clerks and telephonists in the postal service (Angestellte and Beamte) have the right to strike;

- to transmit to it the ruling of the Federal Constitutional Court when it has been handed down.

3. Protest strikes. The Government reiterates its previous comments on this point, which it summarises as follows:

- Convention No. 87 contains no provisions respecting the right to strike; assuming that such a right exists, it is restricted by Article 8(1);

- workers' organisations can influence the legislative process, challenge the constitutionality of laws and demonstrate, outside normal working hours, against the economic and social policy of the Government.

The Committee nevertheless recalls its previous comments on this point and emphasises that, while purely political strikes are not included in the rights guaranteed by the Convention, Article 3 of the latter provides that workers' organisations should have the right to organise their administration and activities and to formulate their programmes.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the information supplied by the Government in reply to its previous comments and the observations made by the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund (DGB)) dated 16 September 1988 on the application of the Convention.

The Committee recalls that its previous comments concerned the following matters:

- denial of the right of access to the workplace for trade union officials who do not belong to an enterprise;

- requisitioning of postmen, counter clerks and telephonists in the postal service with the status of civil servants (Beamte), who clearly do not act in a capacity as agents of the public authority, in order to replace striking postmen, counter clerks and telephonists in the postal service with the status of State manual workers or employees (Angestellte);

- the illegality of protest strikes.

1. Access to the workplace for trade union officials who do not belong to an enterprise. In relation to the Committee's comments concerning the denial of the right of access to the workplace for trade union officials who do not belong to an enterprise, in its last report the Government reiterates its previous statements to the effect that this question has not given rise to any dispute between employers and workers for a long time and adds that there have been no new developments in this respect.

However, the German Confederation of Trade Unions (DGB), intimates that it does not agree with the Government's reply. It explains that the Federal Constitutional Court handed down an order in 1981 establishing that the constitutional protection of the right to organise, and therefore of trade union activities, only applies to the central core of trade union activities (Kernbereich). Consequently, trade union activities only enjoy constitutional protection if they are considered to be indispensable for the maintenance of the trade union and to safeguard its very existence. This court order of the Court had the result of denying the right of access to the workplace for trade union officials who do not belong to an enterprise, and in particular to establishments belonging to the Church and other establishments. In the view of the DGB, as a result of this order, the Federal Government has not yet been able to adapt its legislation to the requirements of the Convention. Furthermore, the Federal Labour Tribunal and all the lower labour tribunals have felt bound by the order. According to the DGB, this denial of the right to organise is contrary to the provisions of Conventions Nos. 87 and 135. The DGB points out that Article 3 of Convention No. 87 affords workers' organisations the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, which signifies that the Convention guarantees trade unions the right to establish the limits that they intend to impose upon themselves regarding the development of their functions and the scope of their activities. However, this latitude is denied them by the order of 1981, especially in workplaces where labour disputes in fact arise and develop. The consequence of this order is that in the event of disputes at the workplace, the trade union is obliged to give proof that its activities are indispensable to maintain and safeguard its very existence. Furthermore, Article 3 implies that it is for trade unions to decide how they wish to organise themselves and whom they wish to appoint as their representatives in their trade union activities at the workplace. In view of the fact that in the Federal Republic of Germany there are no works unions and that trade unions are totally independent of individual enterprises, which, in the view of the DGB, is one of the essential prerequisites for trade unions' capacity to negotiate, the very structure of the trade unions, which are organisations that are independent of enterprises, means that the interests of the workers must, to a large extent, be represented by trade union officials who do not belong to the enterprise in question. Furthermore, by requiring that the internal trade union activities of an enterprise be carried out only by trade union officials belonging to the enterprise in question, the tribunals are automatically dictating to the trade unions the names of the persons who will represent the interests of the trade unions and the workers in an enterprise. Such an interpretation results in a situation in which only the workers directly employed by the enterprise can take part in trade union activities in the enterprise. This is liable to lead to the denial of the right to organise in enterprises where trade unions do not yet have any members or, where employees who are trade union members, when such exist, do not dare to make themselves known for fear of discrimination or reprisals by the employer. Finally, if there is only one unionised worker within an enterprise, under this order, all the trade union activities and recruitment activities in the enterprise should be entrusted to this one worker. In the view of the DGB, this situation is clearly contrary to Article 3 of the Convention, which guarantees trade unions the right to elect their representatives in full freedom without external interference and requires that public authorities refrain from any interference which would restrict this right.

The Committee duly notes the comments made by the DGB on that issue. It recalls that it has been commenting on this question for several years and therefore, once again, requests the Government to indicate in its next report the measures that it has taken to guarantee that trade union officials, even those not belonging to an enterprise, can if necessary have access to the workplace in an enterprise, and to bring its legislation into conformity with the Convention in this respect.

2. Requisitioning of civil servants (Beamte) to replace striking state employees and manual workers (Angestellte) in the public services. With regard to the DGB's allegations that postal employees were requisitioned to break a strike by postal manual workers and employees who are denied the right to strike, the Government indicates only in its report that the Federal Constitutional Court has still not handed down its order concerning the appeal made by the workers. The Government hopes that the Committee will understand that in these circumstances it can make no statement while the Federal Court has not given its verdict.

With regard to the intervention of civil servants as strike-breakers, the DGB states its concern that the Federal Constitutional Court has not yet handed down its order. It recalls that, while awaiting this order, the legal situation remains as it was. Civil servants may be requisitioned against their will to carry out tasks normally entrusted to state employees who are on strike. The Government has used this measure in the past and probably envisages having recourse to it once again in the event of industrial disputes in the public services. This has the result of jeopardising the constitutionally guaranteed right to strike of large sectors of the public services. In the view of the DGB, this problem has recently taken on greater significance in the postal service since two-thirds of employees there are civil servants (Beamte) and one-third is composed of manual workers (Arbeiter) and state employees (Angestellte). This means that the Government is able to overcome the effects of a strike by state employees by ordering civil servants to break the strike. This legal situation is particularly incomprehensible since the Government and the labour tribunals completely deny civil servants (Beamte) the right to strike and oblige them to act as strike-breakers in fields in which the work carried out does not even lie within the scope of their occupational activities and responsibilities.

The Committee recalls that it drew the Government's attention in its previous observation to the fact that, when national legislation prohibits or restricts strikes in the public service or in essential services, such restrictions become meaningless if the legislation defines the public service or essential services too broadly. Accordingly, any prohibition of strikes should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee therefore once again requests the Government to indicate in its next report the measures that it has taken to guarantee the right to strike to public servants who do not act in a capacity as agents of the public authority, and in particular postmen, counter clerks and telephonists in the postal service, whether they are considered to be state employees (Angestellt) or whether they have the status of civil servants (Beamte).

Furthermore, with regard in particular to the requisitioning of civil servants (Beamte) who are not acting in their capacity as agents of the public authority, to replace strikers, the Committee considers that such a measure may constitute a breach of Article 3 of the Convention, under which public authorities must avoid any intervention that could limit the right of workers' organisations to organise their activities and to formulate their programmes.

The Committee, like the Committee on Freedom of Association, recognises that normal community life can be disrupted when the operation of services or enterprises, such as transport or the postal service, is stopped. However, it cannot be said that the stopping of such services or enterprises creates in itself a situation of acute national crisis. Therefore, the Committee considers that the requisitioning of postal civil servants (Beamte) during a dispute in that service was such as to restrict the right to strike recognised to postal employees (Angestellte) as a means of defending their professional and economic interests. In other words, the recourse to public servants (Beamte) or to another group of persons to execute the functions not accomplished by reason of a labour dispute is only justified, if the strike is otherwise lawful, by the necessity of ensuring the operation of services or enterprises whose interruption would create a situation of acute national crisis; the fact that the Government had recourse to employees who are not part to a labour dispute to replace strikers may constitute a risk of restriction of the right to strike, affecting the free exercise of trade union rights.

However, the Committee recalls that it has always considered that, if the extent and duration of a strike could cause an acute national crisis, a minimum service concerning a specified category of workers could be maintained. In that case, however, the trade unions should be able to participate, should they so wish, in defining such minimum service alongside the employers and public authorities.

While noting that the Constitutional Court has not yet issued its verdict on the appeal brought before it on this matter, the Committee requests the Government to indicate in its next report the measures it has taken in this respect, since it is responsible for ensuring that effect is given to this Convention.

3. Protest strikes. Regarding the illegality of protest strikes, and in particular the reprisal measures that, according to the DGB, in its observation of 21 January 1986 and 16 September 1988 were taken against trade unionists undertaking a protest strike against the amendment of section 116 of the Employment Promotion Act, the Government refers in its report to its previous statements and indicates once again that the workers fully enjoy the right to strike and that it sees no reason to take measures in this field at the present time. It adds that no fines were imposed on the trade union officers and it specifies that labour tribunals do not have the power to inflict penal sanctions. In the view of the Government, the actual situation was that the trade union officials were prohibited by the labour tribunals from calling a protest strike, under penalty of a fine in the event of violation of this prohibition. However, the threat of a fine by a tribunal does not constitute in itself a sanction. The purpose of such a threat or such a warning is to give weight to the tribunal's injunction to refrain from such activities. However, the amount of the fine was not established. Concerning the DGB's allegation that trade unionists were dismissed because they had participated in a protest action, the Government indicates that it contacted the German Confederation of Employers' Associations, which informed it that it had undertaken a survey among its affiliated organisations which found that no worker had been dismissed because he had participated in a protest action against the amendment of section 116 of the Employment Promotion Act. If dismissal notices were sent out, they were probably either withdrawn or declared null and void by tribunals.

The DGB once again in its comments dated 16 September 1988 indicates that it considers that the prevailing legal situation in the Federal Republic of Germany, under which the Government considers protest strikes as illegal, is not compatible with the requirements of the Convention. The DGB recalls that the supervisory bodies have repeatedly drawn attention to the right of trade unions to call protest strikes, particularly with a view to expressing criticism of the economic and social policy of governments. The DGB also indicates that the protest strike to which it referred in its previous comments only lasted three hours during working time and that the tribunals ordered trade unions not to call protest actions under threat of heavy fines. In the view of the DGB, the Government's opinion that these fines do not constitute penal sanctions and were not imposed by courts of summary jurisdiction but by labour tribunals is not relevant. It is also irrelevant that the above fines were not, in the final analysis, inflicted. The fact that no coercive or disciplinary penalty was inflicted results only from the fact that the amount of the fines with which the trade unions were threatened was exhorbitant, since they amounted to DM500,000 for each offence, which lead the trade unions to obey the injunctions of the tribunals. With regard to the dismissal of workers who took part in the protest action, the judicial procedures that were undertaken in all cases resulted in the withdrawal of dismissal notices. In cases in which appeals were made before labour tribunals, the dismissal notices were declared null and void. However, the DGB regrets that the tribunals did not explain their decisions by stating that participation in protest actions was legal. On the contrary, they stated that in theory it was illegal and constituted a rupture of the employment contract. In certain cases, they even considered that the strikes in question were illegal political strikes. The dismissal notices were declared null and void because the tribunals considered that participation in these protest actions was an isolated offence and they took into account the length of service of the persons in question to declare insufficient grounds for their dismissal. Furthermore, the DGB indicates that several workers received warning letters threatening them with sanctions under the industrial relations legislation, including dismissal in the event of a re-occurrence of the offence. The threatened sanctions had the effect that several workers, who feared for their employment, refused to exercise their right to criticise the amendment of section 116 of the Act by taking part in the protest action. The pressure created by the warning letters is liable to have a negative effect in the future on possible trade union actions. For this reason, the DGB wishes to emphasise its criticism of the current legal situation with regard to restrictions on the right to strike.

The Committee notes with concern the statements by the Government and the DGB on these matters and recalls that it has on many occasions stated that trade union organisations must be able to call protest strikes, particularly to criticise the economic and social policies of governments, without being threatened by sanctions.